Revealing Redundancy: The Tension between Federal Sovereign Immunity and Nonstatutory Review

Abstract

The doctrine of sovereign immunity dictates that courts lack jurisdiction to review cases challenging official action unless Congress has expressly consented to suit. But in the absence of a statutory waiver of sovereign immunity, courts use “nonstatutory review” to justify the exercise of jurisdiction in suits against federal officers seeking to enjoin ultra vires conduct. This article explores the apparent inconsistency between the Supreme Court’s unequivocal statements that the United States can only be sued with its consent and the federal judiciary’s willingness to adjudicate suits challenging official action in the absence of a waiver of sovereign immunity. The article concludes that, as the federal courts have narrowed the availability of nonstatutory review and of implied rights of action and remedies, sovereign immunity has become superfluous. The article explores that doctrinal redundancy and suggests that these alternative grounds for decision are preferable to sovereign immunity, because they are more closely tied to the text of Article III and to maintaining the balance of power among the branches of the federal government. Thus, the author advocates allowing federal sovereign immunity to wither away.

Keywords: sovereign immunity, nonstatutory review, redundancy